Back It Up:  Massachusetts Supreme Judicial Court Holds First Amendment and Common-Law Rights of Access to Criminal Trial Do Not Extend to Backup Room Recording

Back It Up: Massachusetts Supreme Judicial Court Holds First Amendment and Common-Law Rights of Access to Criminal Trial Do Not Extend to Backup Room Recording

In Commonwealth v. Winfield, the Massachusetts Supreme Judicial Court (SJC), in a matter of first impression, held that the First Amendment right of access to a criminal trial—as applied to the states through the Fourteenth Amendment—and the common-law right of access to judicial records did not extend to a backup room recording that was not the official record of the trial.

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First Circuit Prohibits Warrantless Search of Cellular Phones

First Circuit Prohibits Warrantless Search of Cellular Phones

Courts are split regarding the constitutionality of warrantless searches of cellular phones incident to a lawful arrest, with a majority of decisions upholding the searches. The First Circuit, however, held that such a search in Wurie violated the Fourth Amendment.

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After Online Equity:  De-Crowding and Accommodating Venture Capital

After Online Equity: De-Crowding and Accommodating Venture Capital

On October 23, 2013, the SEC released its proposed equity crowdfunding rules. The proposed rules, which come over a year and a half after the Jumpstart Our Business Startups Act (JOBS Act) was signed into law, outline the details of how the legislation’s new crowdfunding provisions will function. While many have lauded the new rules as potentially useful for capital-seeking startup companies, this new financing mechanism has two serious limitations.

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Thumbs Up:  Fourth Circuit in Bland Determines Facebook “Likes” Are Protected Under the First Amendment

Thumbs Up: Fourth Circuit in Bland Determines Facebook “Likes” Are Protected Under the First Amendment

In Bland v. Roberts, the Fourth Circuit held that “liking” a politician’s campaign Facebook Page constituted protected speech under the First Amendment. In doing so, the court resolved an issue of first impression that interconnects First Amendment jurisprudence with social media’s influence on how people express themselves. According to Facebook, more than three billion “likes” and comments are posted on its website every day.

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Regulation of Paid Tax-Return Preparers:  A Foregone Conclusion Regardless of the Result in the Loving Case

Regulation of Paid Tax-Return Preparers: A Foregone Conclusion Regardless of the Result in the Loving Case

Many have argued that the tax-return preparation industry is behind the licensing curve. The National Consumer Law Center and National Community Tax Coalition have even noted, “[m]ore regulation is required of hairdressers in many states.” The Internal Revenue Service (IRS) sought to change this by extending its regulatory reach to tax-return preparers. However, the IRS’s right to regulate this industry is currently being litigated. This Essay analyzes the legal and policy considerations on both sides of the issue.

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The Massachusetts Supreme Judicial Court Contravenes United States Supreme Court in Sylvain, Ruling Padilla Rights Apply Retroactively

The Massachusetts Supreme Judicial Court Contravenes United States Supreme Court in Sylvain, Ruling Padilla Rights Apply Retroactively

The Sixth Amendment entitles criminal defendants to effective assistance of counsel in defending the charges against them. The Supreme Court has interpreted the Sixth Amendment to hold that failing to advise criminal defendants on whether pleading guilty would subject them to deportation amounts to constitutionally deficient representation. In Sylvain, the defendant alleged that his lawyer failed to advise that he could be deported if he pled guilty and that he would not have done so had he been so informed.

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Avoiding Liability for Mortgage Lenders and Servicers Under HAMP and State Consumer Protection Laws During the Mortgage Modification Process

Avoiding Liability for Mortgage Lenders and Servicers Under HAMP and State Consumer Protection Laws During the Mortgage Modification Process

During the most recent financial crisis, the Obama Administration took what appeared to be a promising initiative to slow down the increasing number of foreclosures occurring throughout the country. The Home Affordable Modification Program (HAMP), which was intended to be a win-win for creditors and debtors. However, after several years of mediocre success, federal courts have begun to place liability on creditors for their perceived failure to save more homes from foreclosure.

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Affirmative Action Survives Fisher (Sort of), but What About Schuette?

Affirmative Action Survives Fisher (Sort of), but What About Schuette?

Justice Kennedy’s majority opinion in Fisher v. University of Texas at Austin on the constitutionality of the University of Texas at Austin’s (the University) affirmative action admissions program appears to have something for everyone. Six other justices who had staked out starkly contrasting positions on affirmative action in the past joined the opinion. The parties to the case each claimed they were pleased with the outcome, and both supporters and opponents of affirmative action hailed the decision a victory for their respective sides of the debate.

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Latest Print Edition

PdfPDF by Gregory D. Chisholm | December-26-2013 |

In Massachusetts, an individual with a drug or alcohol problem may be confined against his or her will in a publicly funded detoxification facility. Such a confinement is known as a civil commitment, and may occur (pursuant to chapter 123, section 35 of the Massachusetts General Laws (Section 35)) upon the petition of certain relatives of the individual or other official personnel, and after both an examination by a psychologist and a hearing before a district court judge. A civil commitment may last up to ninety days. When no beds are available at a publicly funded detoxification facility, an individual may nonetheless be detained in one of two facilities: Bridgewater State Hospital (BSH), if male; or the Massachusetts Correctional Institution [...]

PdfPDF by Joshua Flynn-Brown | December-26-2013 |

In 2011, the unemployment rate for military veterans discharged between the years 2001 and 2011 stood at 12.1%. The jobless rate for all veterans stood at 8.3%. Meanwhile, the overall unemployment rate hovered at 8.8%. Between the U.S. government’s current budgetary tailspin and the ongoing drawdown with respect to the wars in Iraq and Afghanistan, it is inevitable that service members will feel the impact of economic challenges. Nevertheless, this impact becomes even more dramatic when analyzing the Department of Defense’s (DOD) force-shaping measures in 2011 because these force reductions are responsible for discharging tens of thousands of service members.   Such deep military cuts present a unique opportunity to legally dissect the military’s employment culture. Can the military fire [...]

PdfPDF by James M. Alexander | December-26-2013 |

Securities and Exchange Commission (SEC) Rule 10b-5 provides the principal remedy for private investors ensnared in fraudulent securities transactions. A successful pleading of a fraud-on-the-market claim under Rule 10b-5 requires a showing of actual economic loss caused by a fraudulently inflated price of a security purchased by the plaintiff. In Acticon AG v. China North East Petroleum Holdings Ltd., the Court of Appeals for the Second Circuit considered whether a defrauded investor’s unrealized opportunity to sell securities at a profit precludes the ability to prove economic loss under Rule 10b-5’s fraud-on-the-market theory. The Second Circuit held that a recovery in share price after the fraud was disclosed to the purchasers does not automatically defeat an inference of economic loss at [...]

PdfPDF by Abbey P. Coffin | December-26-2013 |

Among other things, the Computer Fraud and Abuse Act (CFAA) provides for civil and criminal penalties when a person, “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer.” Employers have increasingly sought relief under the CFAA against errant employees who download confidential and proprietary information from the employer’s network files for their own benefit or for the benefit of a competitor. In WEC Carolina Energy Solutions LLC v. Miller, the Fourth Circuit Court of Appeals determined whether WEC Carolina Energy Solutions LLC (WEC) could maintain a CFAA claim against former employees and a competitor who allegedly misappropriated WEC’s proprietary information. The Fourth Circuit affirmed the district court’s dismissal of the CFAA [...]

PdfPDF by R. Brice Turner | December-26-2013 |

In order to bring a copyright infringement suit before a court, the work must first have been registered with the United States Copyright Office (Copyright Office). In addition to permitting copyright infringement actions, a copyright’s registration “constitute[s] prima facie evidence of the validity of the copyright.” The certificate of registration is usually held valid unless a defendant can prove that the claimant presented inaccurate information to the Copyright Office with the intent to commit fraud. In Rogers v. Better Business Bureau of Metropolitan Houston, Inc., the United States District Court for the Southern District of Texas analyzed whether uploading webpages to the internet constituted “publication” under copyright law, an act that would invalidate a certificate of copyright registration covering an [...]

PdfPDF by Brian Wall | December-26-2013 |

On November 18, 2010, Anna Jaques Hospital in Newburyport, Massachusetts revealed its new hiring policy. Under the policy, the hospital will not hire any prospective employees who test positive for nicotine. Anna Jaques Hospital’s policy is part of a national trend among private employers that have instituted tobacco-free employment policies and tobacco surcharges on health insurance. Many employers have gone even further, instituting policies that target not only potential employees, but also current employees, who must attempt to quit using tobacco or face termination. . . .  

PdfPDF by Joshua Sylla | December-26-2013 |

In the wake of the September 11, 2001 terrorist attacks, the protection of U.S. national security became the impetus for far-reaching legal action. In response to recent U.S. national security measures, legal scholarship has continuously examined the use of military force, and the legal justifications and constraints surrounding such action. One particular area of this debate focuses on the controversial use of unmanned aerial vehicles (UAVs), or drones, and the legality of carrying out UAV-targeted strikes against alleged members of Al Qaeda throughout the Middle East and Asia-Pacific regions. . . .  


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